Consent (OCR A-Level Law): Revision Notes
Consent
What is consent?
Consent is a general defence in criminal law that operates when the victim has permitted the defendant to carry out what would otherwise be a criminal act. This defence has developed primarily through the common law rather than statute, meaning it has been shaped by judicial decisions over time.
An important procedural point is that the burden of proof rests on the prosecution to prove that consent was absent, not on the defence to prove its existence. This places the evidential responsibility on the prosecution in cases where consent is raised as a defence.
The defence of consent functions by negating the unlawful element of the actus reus of an offence. In other words, it transforms what would otherwise be an unlawful act into a lawful one. For example, in the offence of battery, the law requires an "unlawful application of force" to a person. If the victim consents to the touching (such as a kiss between partners or a handshake between friends), the element of unlawfulness is removed, and no offence is committed.
Limitations on consent
Consent has important limitations. The defence does not apply to murder, as established in Pretty v UK (2002), meaning a person cannot consent to being killed. While consent does apply to the offence of theft (for example, if someone permits another to take their property), the courts have adopted a restrictive approach when dealing with non-fatal offences against the person.
This restrictive approach means that consent is not automatically available as a defence simply because the victim agreed to the harmful conduct. The courts will consider whether the purpose and context of the act are socially acceptable, even where genuine consent exists.
Elements of the defence
For a defendant to successfully raise consent as a defence, three essential elements must be established. Each of these elements has been developed and refined through case law.
The Three Essential Elements of Consent:
- Real consent - There must be genuine consent from a person with capacity to understand
- Consent without fraud - Consent must be obtained honestly, without deception
- Socially acceptable reasons - The force or harm must be applied for purposes society considers acceptable
Real consent
The first requirement is that there must be genuine or "real" consent. This means the person giving consent must have the capacity to understand the nature of what they are consenting to. The law recognizes that certain individuals may lack this capacity.
Children and persons with learning difficulties present particular challenges in this area. While such individuals may express agreement to an act, the law does not automatically recognize this as valid consent because they may not fully comprehend the implications of what they are agreeing to.
Worked Example: Burrell v Harmer (1967)
Facts: The defendant tattooed two boys aged 12 and 13, causing them injury. The boys had agreed to be tattooed.
Issue: Did the boys' agreement constitute real consent?
Held: The court held that this was not real consent because the boys were unable to appreciate the nature of the act and its consequences.
Outcome: The defendant's claim that the boys consented was rejected, and he was convicted.
Principle: Children may lack the capacity to give valid consent to acts with serious or lasting consequences.
Worked Example: Gillick v West Norfolk AHA (1986)
Facts: The case addressed whether doctors could prescribe contraceptive pills to girls under 16 without parental consent.
Issue: Can minors ever give valid consent to medical treatment?
Held: The court established that minors can give valid consent to medical treatment if they have sufficient understanding and intelligence to comprehend what is proposed.
Outcome: This created the concept of "Gillick competence".
Principle: The capacity to consent depends not solely on age but on the individual's maturity and understanding.
Consent without fraud
The second element requires that consent must be obtained honestly, without fraud or deception. The law distinguishes between two types of fraud that can vitiate (invalidate) consent:
Fraud as to identity
If the victim is deceived about who is performing the act, any apparent consent is invalid.
Worked Example: R v Elbekkay (1995)
Facts: The defendant impersonated the victim's boyfriend in a darkened room and had sexual intercourse with her. After approximately 20 seconds, the victim realized the defendant was not her partner and attacked him.
Issue: Was the victim's consent valid given the mistaken identity?
Held: The defendant was convicted of rape because the victim's consent was based on a fundamental mistake about the defendant's identity.
Principle: Fraud as to the actual identity of the person performing the act invalidates consent.
Critical Distinction: Identity vs. Qualities
The fraud must relate to the actual identity of the person, not merely their qualities or characteristics. This distinction is crucial for exam answers.
In R v Richardson (1998), a suspended dentist continued to practice dentistry on patients. Although she was deceived about her status (she was suspended), the court held there was no fraud as to identity—she was still a dentist, albeit a suspended one. The patients had consented to treatment by her as a dentist, and that is what they received. This case shows that not all forms of deception will invalidate consent.
Fraud as to nature and quality
The victim must also understand the nature and quality of the act being performed. If deceived about what is actually being done, consent is invalid.
Worked Example: R v Tabassum (2000)
Facts: The defendant examined several women's breasts, claiming to be conducting cancer research. In reality, he had no medical qualifications or legitimate research purpose.
Issue: Did the women consent to the touching?
Analysis: The Court of Appeal held that while the women had consented to the physical act of breast examination, they had not consented to the quality or nature of that act—they believed they were participating in genuine medical research when they were not.
Held: The consent was invalid, and the defendant was convicted.
Principle: Consent must extend to the nature and quality of the act, not just the physical touching.
Socially acceptable reasons
The third element requires that the force or harm must be applied for socially acceptable reasons. This is perhaps the most complex and controversial aspect of consent, as it requires the courts to balance individual autonomy (the right of people to make their own choices about their bodies) against the need for public protection.
The Balancing Exercise
The courts must weigh:
- Individual autonomy: The freedom of individuals to consent to activities that may cause them harm
- Public protection: Society's interest in preventing injury and maintaining public order
The law recognizes that this balance should evolve as public attitudes change, though courts have generally been conservative in expanding the categories of activities to which consent can be a defence.
R v Donovan (1934) established an important principle: an act is not automatically lawful simply because the victim consents to it. In this case, the defendant caned a young woman for sexual gratification, causing her discomfort and bruising. The court held that consent was not a defence because the purpose was not socially acceptable. This case shows that the motivation behind the act, and whether society considers it acceptable, is crucial.
Public Policy Considerations
A-G Ref. No. 6 of 1980 (1981) further developed this principle by holding that consent is not available as a defence to a fight between two adults in a public street, even if both participants were willing.
Reasoning: Allowing people to fight in the street with impunity would undermine public order, even if the participants consented. This demonstrates how public policy can override individual consent.
Application of consent in specific contexts
The law has developed different rules for consent depending on the context in which the harm occurs. Understanding these contexts is essential for applying the defence correctly.
Consent in sport
Participants in sporting activities are generally deemed to consent to the level of force that is inherent in and incidental to the proper playing of that sport. This recognizes that many sports necessarily involve physical contact that would otherwise constitute battery or assault.
However, this consent has clear limits—players do not consent to violence that goes beyond what is expected in the normal course of the game.
Worked Example: R v Billinghurst (1978)
Facts: The defendant punched another player during a rugby match, fracturing the victim's jaw.
Issue: Did the victim consent to being punched as part of playing rugby?
Held: While rugby players consent to the physical contact inherent in the game (such as tackling and scrummaging), they do not consent to deliberate acts of violence like punching.
Outcome: The defendant was convicted.
Principle: Consent in sport is limited to force that is a normal and expected part of the game.
This principle applies across different sports, with the boundaries of acceptable force varying according to the nature of the sport. Boxing, for example, permits punches to the head that would be criminal assault in other contexts, but even in boxing there are rules about what is permitted.
Consent in horseplay
The law also recognizes consent in situations of rough and undisciplined play or "horseplay," typically among friends or colleagues. However, the legal position is somewhat more generous to defendants in this context.
Worked Example: R v Jones (1986)
Facts: Two defendants gave another boy "birthday bumps," tossing him into the air. The boy was injured when he was dropped.
Issue: Could the defendants rely on their belief that the victim consented?
Held: The court held that the defendants' honest belief in the victim's consent was sufficient for a defence to a charge of causing grievous bodily harm (GBH).
Principle: A defendant's genuine belief that the victim consented to horseplay can provide a defence, even if the victim did not actually consent.
Worked Example: R v Aitkin (1992)
Facts: During an RAF initiation ceremony, the defendant set fire to the victim's flame-proof overalls, which unfortunately were not completely flame-proof. The victim suffered burns.
Issue: Could the victim consent to the risk of injury in rough play?
Held: The court held that the victim could give consent to the risk of accidental injury occurring in the course of rough, undisciplined play, even though the specific injury that occurred was not foreseen.
Outcome: The defendant's belief that the victim consented, and the victim's actual participation in similar activities, meant consent was available as a defence.
Principle: Consent in horseplay extends to the risk of accidental harm, not just the intended actions.
These cases show that the courts take a more lenient approach to consent in horseplay contexts, recognizing that in informal, spontaneous situations among friends or colleagues, genuine mistakes about consent may occur.
Consent and fighting
The law draws a clear distinction between organized illegal fighting and consensual horseplay.
R v Coney (1882) established that consent cannot be a defence to participation in illegal prize-fighting. In this case, spectators at a bare-knuckle prize fight were charged with aiding and abetting assault. The defendants were convicted because prize-fighting was illegal, and the fighters' consent to injure each other provided no excuse.
Key Principle: Some activities are so contrary to the public interest that consent cannot make them lawful, regardless of the willingness of all participants.
This reflects the public policy that allowing people to consent to serious violence in organized fighting would be harmful to society, even if all participants are willing. The law therefore prohibits such activities regardless of consent.
Consent and sexual activity
The law's approach to consent in sexual contexts has been particularly controversial and has evolved significantly over time. The courts have generally taken a restrictive approach when sexual gratification is the primary motive for inflicting harm.
The historical position was set out in R v Clarence (1888), where a husband infected his wife with a sexually transmitted disease during consensual sexual intercourse. The court held there was no offence because the wife had consented to sex with her husband, and the transmission of disease was not the purpose of the act. This case was based on the Victorian view of marital relationships and has since been overruled.
Worked Example: R v Dica (2004)
Context: This case overturned the principle in Clarence.
Facts: The defendant infected two victims with HIV during unprotected consensual sexual intercourse.
Issue: Did the victims' consent to sexual intercourse include consent to the risk of HIV infection?
Held: The Court of Appeal held that while the victims had consented to sexual intercourse, they had not consented to being infected with HIV.
Outcome: The defendant was convicted under section 20 of the Offences Against the Person Act 1861 (inflicting grievous bodily harm).
Principle: Consent to sexual intercourse does not automatically include consent to the risk of infection with serious diseases, particularly where the defendant is aware of his condition and does not inform his partners.
The most significant and controversial case in this area is R v Brown and others (1993).
Worked Example: R v Brown and others (1993)
Facts: A group of homosexual sadomasochists engaged in consensual acts that caused injuries, including branding and genital torture. All participants were willing and no complaints were made; the activities only came to light through a police investigation.
Charges: The defendants were charged and convicted under sections 47 and 20 of the Offences Against the Person Act 1861, despite the clear consent of all participants.
Held: The House of Lords held that consent was not a defence to these charges.
Reasoning: The court reasoned that the acts were "simply violence masked as sexual activity" and were against public policy. The majority view was that society has an interest in preventing people from inflicting harm on each other, even in private and even with consent, particularly where the level of harm reaches the threshold of actual bodily harm (ABH) or greater.
Criticism: This decision has been heavily criticized for interfering with private consensual adult activity, but it remains the leading authority.
R v Slingsby (1995) provides an interesting contrast. The defendant engaged in consensual sexual activity involving vaginal fisting with the victim. His signet ring caused internal injuries that led to the victim's death from septicaemia. The defendant was acquitted of manslaughter.
Key Distinction: The court held that consent can be a defence to manslaughter (though not to murder), and because the victim had consented to the sexual activity and the injury was accidental rather than intended, the defendant had not committed an unlawful act.
Consent and body modification
Recent case law has addressed whether consent can be a defence to intentional body modification procedures.
Worked Example: R v BM (2018)
Facts: A tattooist performed body modifications including removing a customer's ear and nipple, and splitting another customer's tongue. The tattooist was charged with three offences under section 18 of the Offences Against the Person Act 1861 (causing grievous bodily harm with intent).
Issue: Could the customers' consent provide a defence to these serious injuries?
Held: The Court of Appeal held that, despite the customers' consent, this was not a defence. The court declined to place body modification in the category of exceptions where consent can be a defence to causing injuries amounting to ABH or above.
Reasoning: Such procedures, when performed by unqualified persons outside medical contexts, pose serious risks to public health and safety.
Distinction: The court distinguished body modification from tattooing (which is legally regulated) and from surgical procedures performed by medical professionals.
Principle: The court remains reluctant to expand the categories of activities to which consent can be a defence where serious harm is intended and caused.
Key cases summary
Cases on real consent and capacity
- Burrell v Harmer (1967): Consent from minors to tattooing was not real consent because they could not appreciate the nature of the act
- Gillick v West Norfolk AHA (1986): Established that minors can give valid consent if they have sufficient maturity and understanding (Gillick competence)
Cases on fraud
- R v Richardson (1998): No fraud as to identity where a suspended dentist continued to practice—she was still a dentist, just suspended
- R v Elbekkay (1995): Fraud as to identity where defendant impersonated victim's boyfriend to obtain sexual intercourse
- R v Tabassum (2000): Fraud as to nature and quality where defendant falsely claimed to be conducting cancer research when examining women's breasts
Cases on socially acceptable purposes
- R v Donovan (1934): Consent not a defence to caning for sexual gratification—act not lawful simply because victim consents
- A-G Ref. No. 6 of 1980 (1981): Consent not available for street fighting between adults, based on public policy
- R v Brown and others (1993): Consent not a defence to sadomasochistic acts causing ABH or GBH—violence masked as sexual activity is against public policy
Cases on sport and horseplay
- R v Billinghurst (1978): Rugby players consent to force inherent in the game, but not to deliberate punches
- R v Jones (1986): Defendant's belief in victim's consent to horseplay can provide a defence to GBH
- R v Aitkin (1992): Victim can consent to risk of accidental injury during rough, undisciplined play
Cases on sexual activity and disease transmission
- R v Clarence (1888): (Now overruled) Husband not guilty of assault when infecting wife with STD during consensual sex
- R v Dica (2004): Overruled Clarence—consent to sex does not include consent to HIV infection
- R v Slingsby (1995): Consent can be a defence to manslaughter where death results from accidental injury during consensual sexual activity
Cases on body modification
- R v BM (2018): Consent not a defence to serious body modifications (ear removal, nipple removal, tongue splitting) performed by tattooist—body modification not in category of exceptions
Exam guidance
For Problem Questions:
Follow this structured approach:
- Identify whether consent is potentially relevant to the offence charged
- Apply the three-part test:
- Is there real consent?
- Was consent obtained without fraud?
- Is the purpose socially acceptable?
- Consider the context (sport, horseplay, sexual activity, etc.) and apply relevant case law
- Reach a conclusion on whether consent succeeds as a defence
For Essay Questions:
Structure your answer around these themes:
- Discuss the tension between individual autonomy and public policy
- Evaluate whether the law strikes the right balance (particularly in Brown)
- Consider whether categories should be expanded or restricted
- Analyze inconsistencies in the law (e.g., different approaches to horseplay vs. sadomasochism)
Common Pitfalls to Avoid:
- Confusing fraud types: Don't confuse fraud as to identity with fraud as to qualities or characteristics (Richardson)
- Automatic availability: Don't assume consent is always available if the victim agreed—remember socially acceptable purposes are required
- Murder exception: Don't forget that consent does not apply to murder
- Intended vs accidental: Don't overlook the distinction between intended harm and accidental injury
- Burden of proof: Don't forget that the prosecution must prove lack of consent, not the defence prove its existence
Remember!
Key Points to Remember:
- Consent negates the unlawful element of the actus reus, making an otherwise criminal act lawful
- Burden of proof is on the prosecution to prove absence of consent
- Three essential elements: real consent, consent without fraud, and socially acceptable purpose
- Real consent requires capacity to understand—children and those with learning difficulties may not be able to give valid consent (Burrell v Harmer)
- Fraud invalidates consent in two situations: fraud as to identity (Elbekkay) and fraud as to nature/quality of the act (Tabassum)
- Socially acceptable purposes: the law balances individual autonomy against public policy—consent more readily available in sport and horseplay, restricted in fighting and sexual violence
- Brown principle: consent generally not a defence to intentional infliction of ABH or above in sexual contexts
- Consent does not apply to murder (Pretty v UK)
- Sport and horseplay: participants consent to inherent risks, but not to excessive violence; genuine belief in consent may suffice (Jones)
- Recent developments: body modification not in category where consent is a defence (R v BM 2018)